Reliability of Evidence - Evidence Rule 403

Posted Monday, December 11, 2017 by Ed Harper

Evidence Rule 403 stands for the proposition that evidence which is more prejudicial than probative should be excluded from a jury’s purview. A recent unpublished decision, Gilmore v. Jefferson County Public Transportation, (Jefferson Transit) rendered by Division 2 of the Court of Appeals of Washington on April 25, 2017, concluded that a trial court committed reversible error when the court granted the exclusion of the expert witness under Evidence Rule 403. The case has now been brought up to the Supreme Court of Washington.

Defendant Jefferson Transit had proposed the testimony of Allen Tencer, PhD, a biomechanical engineer, that Mr. Gilmore could not have been injured in this collision. Or more specifically, Tencer calculated the forces which occurred to be below the speed necessary for one to be injured. Jefferson Transit did not submit Tencer’s opinion as a medical opinion but merely this proved the collision did not rise to the level of severity where one could be injured.

Dr. Tencer has testified numerous times in “low crash - no cash” injury claims. While Tencer has significant education and experience in biomechanics relative to injury prevention, the trial court precluded the admission of his testimony because it was “intended to create an inference with some aura of authority” and the court felt this evidence was not reasonable or justified.

Tencer’s opinion, according to the trial court, would be prejudicial to plaintiff Gilmore not out-weighed by the probative value of the evidence. Dr. Tencer, by looking at photographs, and making certain assumptions, almost always concludes that the forces experienced in a motor vehicle collision were not sufficient to overcome the threshold of injury. Additionally, as well as providing the defense testimony with an aura of authority, the trial court concluded that Tencer’s opinion would be confusing and misleading to the jury.

Plaintiff Gilmore pointed out to the court there are deficiencies in Tencer’s testing methods. Further, according to Plaintiff Gilmore, Tencer provided speculative testimony on the speed of the defendant’s bus, the damage done to the vehicles, and the plaintiff’s height and weight. In sum, Plaintiff Gilmore contested Tencer’s opinions and his extrapolations from mere averages, and from crash tests different than the situation in each particular case. Therefore, Dr. Tencer’s opinion should not be presented to the jury as it is prejudicial and unreliable under ER 403. It will be interesting to see how the Supreme Court of Washington Rules on this case.

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